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Published online by Cambridge University Press: 06 March 2019
Secrecy profoundly challenges democratic oversight. Law enforcement cooperation, however, requires some space for discretion and confidentiality. This classical paradox within the context of the European Union is central in the current legislative debate on Europol's revision. The reform is initiated by the Commission's proposal in March 2013 and, for the first time in its history, the European Parliament has direct power to decide over the future of the intelligence agency.
This article argues that we should not overestimate European Parliament's post-Lisbon prerogative for oversight, and particularly its access to Europol Classified Information, due to the architecture of intelligence exchange. The foundational principle of intelligence cooperation confers absolute discretion to the originators of information and Europol's “secrets” in almost all cases originate from the member states or third parties.
The article offers a new legal and empirical perspective on the tensions of secrecy and oversight in the EU, and especially in the Area of Freedom Security and Justice. It discusses the internal information structure of Europol and suggests options for more plausible oversight arrangements.
1 See Treaty on the Functioning of the European Union, Dec. 13, 2007, 2012 O.J. (C 326) 88(2) [hereinafter TFEU]; see also Proposal for a Regulation of the European Parliament and of the Council on the European Union Agency for Law Enforcement Cooperation and Training (Europol) and Repealing Decisions 2009/371/JHA and 2005/681/JHA, Mar. 27, 2013, 2013 O.J. (COM 0173) [hereinafter Europol Regulation Proposal].Google Scholar
2 See TFEU, supra note 1, art. 88(2); Europol Regulation Proposal, supra note 1, art. 54.Google Scholar
3 See Agreement Between the European Union and the United States of America on the Processing and Transfer of Financial Messaging Data from the European Union to the United States for the Purpose of the Terrorist Finance Tracking Program, Jan. 13, 2010, 2010 O.J. (L 195/5); see also Letter from Rob Wainwright, Europol Director, to Juan Fernando López Aguilar (May 24, 2012), http://www.statewatch.org/news/2012/jun/eu-usa-tftp-europol-ep-letter.pdf (denying access to the European Parliament's LIBE Committee); see generally Elaine Fahey, Law and Governance as Checks and Balances in Transatlantic Security: Rights, Redress, and Remedies in EU-US Passenger Name Records and the Terrorist Finance Tracking Program, Yearbook of European Law (2013).Google Scholar
4 See Council Decision 2009/968/JHA of 30 November 2009, Adopting the Rules on the Confidentiality of Europol Information, 2009 O.J. (L 332/17); Council Decision 2009/934/JHA of 30 November 2009, Adopting the Implementing Rules Governing Europol's Relations with Partners, Including the Exchange of Personal Data and Classified Information, 2009 O.J. (L 325/6); James I. Walsh, Intelligence-Sharing in the European Union: Institutions Are Not Enough, 44 J. Common Mkt. Stud. 625 (2006).Google Scholar
5 See Council Decision 2013/488/EU of 23 September 2013 on the Security Rules for Protecting EU Classified Information, 2013 O.J. (L 274); see Alasdair Roberts, OCRON Creep: Networked Governance, Information Sharing, and the Threat to Government Accountability, 21 Gov't Info. Q. 249 (2003).Google Scholar
6 Interview with Europol Official in Charge of Classified Information, in The Hague, Netherlands (Mar. 19, 2012).Google Scholar
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10 In terms of methodology, the interviewees were part of semi-structured qualitative interviews with questions based on the applicable legal framework and their personal practice. For the broader European Union Classified Information system (EUCI), almost thirty high-level EU officials have been interviewed, of which five officials have direct connection with Europol, and others form part of the Council, the Commission, and the European External Action Service. The selection of the interviews is based on their professional link with the EUCI. The overall interviews are part of a broader research on the EUCI. Due to protection of privacy, the identity of the officials is not revealed publicly in the article and remains on file with the author.Google Scholar
11 Europol's origin can be traced back to the so-called TREVI group of the 1970s, when the member states' interior ministries and security services aimed to co-ordinate national counter-terrorism efforts that had cross-border implications. See John D. Occhipinti, The Politics of EU Police Cooperation: Towards a European FBI? 32 (2003); Rachel Woodward, Establishing Europol, 1 Eur. J. on Crim. Pol'y & Research 7 (1994).Google Scholar
In the Treaties, Europol was first mentioned in Article K1 (9) of the EU Treaty as a “Union-wide system for exchanging police information.” It was established in 1993 by a Ministerial Agreement in order to fight drug trafficking. This Agreement was later replaced by a Joint Action to establish the Europol Drug Unit with a mandate wider than only drug trafficking, as it also covered trafficking in radioactive and nuclear substances, clandestine immigration networks, and vehicle trafficking. The Joint Action was replaced by the 1995 Europol Convention, which entered into force in 1998. Since the Amsterdam Treaty, there were attempts to build a legal and institutional framework in order for Europol to be fully operational for fighting cross-border crime. See Council Decision 2009/371/JHA of 6 April 2009, Establishing the European Police Office (Europol), May 15, 2009, 2009 O.J. (L 121/37); see also Mathieu Deflem, Europol and the Policing of International Terrorism: Counter-Terrorism in a Global Perspective, 23 Just. Q. 336 (2006).Google Scholar
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19 See Alasdair Roberts, OCRON Creep: Networked Governance, Information Sharing, and the Threat to Government Accountability, 21 Gov't Info. Q. 249 (2003); Europol Management Board, Decision Laying Down the Rules Concerning Access to Europol Documents (2009), https://www.europol.europa.eu/sites/default/files/public_access_to_europol_documents.pdf Google Scholar
20 Protection for classified documents in the EU has existed since 1958 in the form of Regulation No. 3, the scope of which was limited to defense information for measures exercised under the supervision of the Commission. A form of the originator rule is found in Article 6(1) where the “original security grading” of the information in question is retained. See Hans Ragnemalm, The Community Courts and Openness within the European Union, in The Cambridge Yearbook of European Legal Studies 19, 22 (1999).Google Scholar
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27 See Madalina Busuioc & Martijn Groenleer, supra note 13; Interview with Europol Official, in the Hague, Netherlands (30 Aug. 2012).Google Scholar
28 See for example arts. 3, art. 10, and art. 11 of the Council Decision 2009/968/JHA of 30 November 2009, Adopting the Rules on the Confidentiality of Europol Information, 2009 O.J. (L 332/17).Google Scholar
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32 Interviews with Several Europol Officials, in The Hague, Netherlands (Mar. 29, 2012, Apr. 10, 2012 & Aug. 30, 2012).Google Scholar
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34 Oversight generally refers to an actor scrutinizing an organization's activities with the aim of evaluating its compliance with particular criteria and on this basis, issuing recommendations or orders to the organization concerned. See id. at 41. Some authors define control in a similar manner. For example, Hood defines control as “the periodic checking and examination of the activities of public officials by external actors possessed of formal or constitutional authority to investigate, to grant quietus or to censure, and in some cases even to punish.” See Christopher Hood, The Hidden Public Sector: The “Quangocratization” of the World, in Guidance, Control and Evaluation in the Public Sector 766–67 (G. Majone & V. Ostrom eds., 1986). The aim and scope here is not to draw clear distinctions and discuss these terms, but it must be noted that they are not significantly different and mostly differ in terms of the level and importance of consequences as well as the rigidity of the evaluation process. One of the key differences is if they are focused retrospectively or through the decision-making process as well. See Carol Harlow, Accountability in the European Union 10 (2002).Google Scholar
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36 See European Commission, The Commission Paves the Way for Increased Transparency and Parliamentary Scrutiny of Europol (Dec. 17, 2010), http://europa.eu/rapid/press-release_IP-10-1738_en.htm.Google Scholar
37 See Wills, & Vermeulen, , supra note 33, at 126.Google Scholar
38 See TFEU, supra note 1, art. 10(2).Google Scholar
39 See European Commission, supra note 36; European Commission for Democracy Through Law (Venice Commission), Report on the Democratic Oversight of the Security Services (2007) [hereinafter Venice Commission].Google Scholar
40 See Europol Regulation Proposal, supra note 1, art. 5.Google Scholar
41 See The Europol Convention, Jul. 26 1995, art. 34.Google Scholar
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49 European Union Committee, The UK Opt-In to the Europol Regulation, 2013-2 H.L. 16 (U.K.).Google Scholar
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51 Regarding the last point, curiously, the amendments of the European Parliament exclude the possibility of Europol to draw reports on the quantity and quality of information shared by the member states on the basis that such reports would mean an imposition on the national authorities. Such reports could indeed be seen from that perspective, but the intention rather is to create a higher awareness and more cooperative culture between the national authorities and Europol, which in the past has continually been identified as an issue.Google Scholar
52 Europol Regulation Proposal, supra note 1, arts. 53, 54.Google Scholar
53 Council Decision 2013/488/EU on the Security Rules for Protecting EU Classified Information, Sept. 23, 2013, 2013 O.J. (L 274).Google Scholar
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